Australian Legal System Case Study: Tort Law and Negligence Analysis

This case study examines the tort of negligence within the Australian legal system, using the case of Sergeant Gabrielle MacDonald to illustrate its elements: duty of care, breach of duty, damage, and causation. It discusses how the New South Wales police department's handling of Mrs. McDonald's post-traumatic stress disorder (PTSD) could be considered negligent. The study also references relevant Australian cases and legislation, such as the Civil Liability Act 2002, and explores the potential consequences of holding a police department liable for negligence, including reputational damage, loss of trust, and increased financial burden. The case study concludes by emphasizing the importance of proper management of mental health issues within police forces to avoid negligence claims. Desklib provides access to similar case studies and solved assignments for students.

INTRODUCTION
Police officers in Australia do experience traumatic disorders due to horrible incidences they
witness or handle. The Australian state government has a duty of care to its police force by
ensuring that police officers get mental assistance to cope up with their situations and helping
them relieve stress and depression. The case study of Mrs. MacDonald has been used to show
how a tort of negligence arises on the part of government, its elements and possible remedies to
the victims of tort. The case study delves into the understanding tortious liability for negligence,
its elements, remedies and application to the case study of Sergeant McDonald’s suicide case.
Definition and aims of tort law
Civil law has a primary aim of making compensation to the aggrieved parties. Civil cases are
instituted by private individuals who could be natural persons, legal persons and government
agencies. In Australia tort law comprises of common law principles to a larger extent and
Australian legislations to a smaller extent. A tort is defined to be a civil wrong to the exclusion
of breach of contract. The civil wrong is done by private parties against other private parties or
by the government agencies. The case study of this research focuses on the tort of negligence as
discussed below.
Elements of tortious liability for negligence
For an individual to claim negligence, he or she must establish the following grounds of
negligence against the defendant;
Duty of care- the claimant must prove on a balance of probability that the defendant owes him a
duty of care. Duty of care arises where there are set standards guiding the defendant his action.
The defendant is therefore required to uphold those standards. (Amanda Stickley, 2016)
Breach of duty- the claimant must establish that the defendant breached the duty of care by
acting below the required standards. The standard of duty of care was demonstrated in the case
of Donoghue v Stevenson1 where lord Atkin established duty of care using the neighbour
principle by defining a neighbour as anyone affected by our actions.
1 Donoghue v Stevenson [1932] AC 532

Damage-the claimant has to prove that he suffered injuries due to breach of the duty of care
owned to him. The injuries or the damage occasioned to the plaintiff would not have occurred if
the defendant exercised due care and diligence by upholding the set standard required for his
actions. Damage resulting from breach of such a duty was proved in the leading Australian case
of Grant v Australian Knitting mills2 in a case seeking to hold the manufacturer of leather
innerwear liable for skin disease caused to the plaintiff who wore a leather pant with excess
Sulphur.
Causation- there must be proximity between the careless action and the damage suffered. A
causal connection has to be established proving that the negligent act caused the damage and not
any other act hence just and fair to place liability on the wrong doer as evidenced in the case of
Caparo industries PIC v Dickman3
Application to the case study of Sergeant Gabrielle MacDonald
In this particular case study the plaintiffs who have instituted three tortious claims for a tort of
negligence are the spouse to the deceased Mr. McDonald together with his children. The
defendant who was sued is the New South Wales State. The plaintiff Mr. McDonald sued on
behalf of his son and daughter, Joshua and Jessica respectively and on behalf of himself. (Lorna
Knowles, 2016)
The police department for the state of NSW was actually negligent in handling the post-traumatic
stress disorder (PTSD) for Mrs. McDonald. All the four elements of negligence discussed above
can actually be proved on the NSW police force administration. The New South Wales police
department had a duty of care and breached that duty by failing to take all necessary measures
they are supposed to take to handle Gabrielle’s condition at the moment. Despite the deceased
having attempted to commit suicide, the police claimed it was not genuine and settled on a
transfer option which was not well communicated to the deceased.
The suicide victim was not subjected to proper monitoring of her condition from the police. She
instead continued working in a worsened stressful condition. The duty of due diligence and care
was breached by the police for failing to offer the victim with adequate training on her working
2 Grant v Australian Knitting Mills [1935]UKPC 62
3 Caparo Industries v Dickman [1990] UKHL 2

conditions and safety precautions. The victim suffered a psychotropic disorder leading to her
death by suicide due to poor response of police to her condition. The husband who is the plaintiff
also underwent an adjustment disorder resulting to anxiety, stress and depression due to the loss
of his wife in such a nasty circumstance. The plaintiff is therefore likely to prove all the four
elements of negligence discussed above which have resulted to psychotropic disorder and
eventually death of his wife. Liability for mental harm is a codified civil wrong under the Civil
Liability Act 2002. Part 3 of the Act was applied in the case of Wicks v SR4 whereby the plaintiff
after being instructed by the defendant to go and save train crash victims, he got traumatized and
suffered mental harm after doing his best to save the victims. The case was however dismissed
for failing to meet the threshold of psychiatric injury required as provided in part 3 of the Civil
Liability Act 2002.5
If a police department is held responsible for negligence the liability could result to numerous
challenges both to the society and the industry as a whole. The first consequence is the damage
caused to the reputation of police officers hence people will view the police force as a harmful
career to join. There could be also instances of loss of trust in the industry hence more people
tending to refuse joining the police force. The consequence could also be stigmatization of police
officers and perceiving them to be unfriendly and malicious. The final consequence discussed
under this paper is increased financial budget of managing the police force. Most negligence
claims if successful end up with compensatory orders for numerous types of damages requiring a
lot of money which makes running the police force very expensive to the taxpayers. The police
force should therefore ensure it upholds all the standards required in managing mental harm
caused to officers while on duty to avoid negligence charges and liability for psychiatric injury
under the Civil Liability Act. (Richard Hyde, 2016)
CONCLUSION
This case study aimed at discussing the tort of negligence and its elements basing on the practical
experience of the tort of negligence on the case of McDonald’s family. The grounds required to
prove negligence have been discussed to include; presence of duty of care, breach of the duty,
damage and causal connection between the negligent act and damage. PTSD is a serious
4 Wicks v State Rail Authority(SRA) of New South Wales [2010]HCA 22
5 Civil Liability Act 2002 s 30(1)(2)

psychiatric injury that the police forces need to handle it with reasonable care to avoid claims of
negligent. If the disorder is not monitored it could drive one to commit suicide due to depression.
The consequences of such liability are dire on the industry and the society at large.
Bibliography
Caparo industries v Dickman [1990] UKHL 2
Civil Liability Act 2002
Donoghue v Stevenson [1932] AC 532
Grant v Australian Knitting Millis [1935] UKPC 62
Hyde, R, 2016, ‘The role of civil liability in ensuring police responsibility for failures to at after
Michael and DSD’, European Journal of legal issues vol 22, No 1
Lorna, K, 2016, ‘Family of NSW Policewoman who took her own life suing state for millions,’
The ABC News, 11 July, viewed 31 May 2019, ABC News website, <
https://www.abc.net.au/news/2016-07-11/family-of-nsw-policewoman-who-took-her-own-life-
suing-state/7576870>
Stickley, A, 2016, Australian Torts Law, 4th edition Lexis Nexis
Wicks v South Rail Authority of NSW [2010] HCA 22